Legislature(2003 - 2004)
04/20/2004 08:08 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 514-CHILD SUPPORT ENFORCEMENT/CRIMES MR. JOHN MAIN, staff to Representative Pete Kott, reminded members that at the last meeting, Senator French had asked for an amendment [to clarify the language in Section 5 (2)(A)-(C) on pages 3 and 4]. CHAIR SEEKINS confirmed that amendment is now labeled XA.1 and entertained a motion to consider the amendment as Amendment . SENATOR OGAN so moved. SENATOR FRENCH asked for an explanation. MR. MAIN said it basically specifies that the standard is "intentionally" in subsections (A)-(C) and renumbered those sections. CHAIR SEEKINS and SENATOR FRENCH felt that Amendment  reads better than the original language. SENATOR FRENCH asked what lines 6 through 15 on page 2 of Amendment 1 would do. CHAIR SEEKINS clarified that the amendment should be referred to as Amendment 2. MR. MAIN explained that provision has been in the statute and CSED has had no problem with that language in the prosecution of cases. CHAIR SEEKINS questioned whether the only change is to correct the numbering sequence to conform to the changes made in the first part of Amendment 2. MR. MAIN said that is correct. SENATOR FRENCH removed his objection to the adoption of Amendment 2 so it was adopted. He then asked Mr. Main the theory behind revoking sport hunting and fishing licenses for non-payment of child support in Section 9 on page 4. MR. MAIN told members that deal was brokered between the federal government and the State of Alaska. The federal government requires that hunting and fishing licenses be revocable but Alaska does not track hunting and fishing licenses in the same way that other states do. Other states have an updated database; in Alaska, that information is turned in to the state in February or May. The legislature did not want to make the revocation of fish and game sport licenses part of the earlier bill that provided for revocation of occupational and drivers' licenses. Therefore, the best remedy was to revoke the sport hunting or fishing license at the time of a criminal conviction for non-support. He explained: There are two ways that it can be taken that way, one is civil, which is to be held in contempt - the court can take at that time or if the individual is convicted of failure to pay child support, criminal non-support misdemeanor, as it presently is, and that satisfied the federal government. They're not happy about it but they're satisfied that at least there is a provision with which to be able to remove the hunting/fishing license. Basically, it's the privilege of hunting and fishing as a sport compared to subsistence, and that was one of the issues that was placed under [AS]09.50.020. It lists out what is considered a recreational license and what is considered to be subsistence and personal. Recreational is only considered to be sports fishing and sport hunting. The personal use fishing - dipnetting, that kind of stuff that is exempted, subsistence fishing and subsistence hunting is also exempted. CHAIR SEEKINS said every resident in the state is considered by state law to be a subsistence hunter, which is why the state has tier 2 permits that anyone can apply for. That is not the case under Alaska law for fishing and there is no license for subsistence fishing. However, for personal use fishing, a person must have a license. He was not sure whether Alaska law differentiates between recreational fishing and personal use fishing to feed one's family. MR. MAIN responded that personal use fishing under AS 16.05.940 is described as: 'personal use fishing' means the taking, fishing for, or possession of finfish, shellfish, or other fishery resources, by Alaska residents for personal use and not for sale or barter, with gill or dip net, seine, fish wheel, long line, or other means defined by the Board of Fisheries; MR. MAIN added that sport fishing is different than personal use fishing. CHAIR SEEKINS said the same license exists for sport and personal use fishing. MR. MAIN noted that sport fishing is described under AS 16.04.940(29); while personal use fishing is described under AS 16.04.940(24). Sport fishing is described as: ...means the taking of or attempting to take for personal use and not for sale or barter any fresh water, marine, or [anadromous] fish by hook or line held in the hand, or by hook and line with the line attached to a pole or rod which is held in the hand or closely attended, or by other means defined by the Board of Fisheries; CHAIR SEEKINS referred to his own fishing license and noted it did not contain a category for personal use. He questioned how a person could personal use fish to feed his family but not recreational fish. SENATOR OGAN indicated that a person must buy a sport fish license to personal use fish. CHAIR SEEKINS expressed confusion about whether or not a sport fish license could be revoked if it is not being used as a recreational license. MR. MAIN pointed out the language in the present law says "the court may" and in the 24 cases in which individuals were convicted of criminal non-support, CSED did not request the revocation of recreational fishing licenses and the court did not order any such revocations. CHAIR SEEKINS suggested, for the sake of accuracy, putting language in the bill to explain that a recreational license does not mean a license necessary to participate in personal use or subsistence hunting and fishing. MR. MAIN noted that Senator Ogan said he wrote most of that statute and that it doesn't apply to those items that are not considered to be recreational licenses. CHAIR SEEKINS announced a brief recess. 9:30 a.m. Upon reconvening, Senator Therriault rejoined the committee. CHAIR SEEKINS commented that the key word in the penalty for aiding and abetting in the non-payment of child support is to "restrict" a recreational fishing or hunting license for a period not to exceed one year, as defined in AS 09.50.020(c). He said that subsection refers to a sport fishing license unless it is required to participate in personal use or subsistence fishing. He said this is a toothless law except that the court could order a person to only use a hunting or fishing license for the purpose of personal use or subsistence, and not for recreation. SENATOR FRENCH questioned whether the law should read, "the court may restrict" and not address suspend or revoke because the court cannot suspend a license. MR. MAIN repeated this was a way to comply with the federal mandate but not require the Alaska Department of Fish and Game (ADF&G) to create a database that was accessible by others. CHAIR SEEKINS said it just seems that all an offender would have to say is that he or she needs the license for a personal use fishery. He said he feels comfortable with that because he did not want a person's personal use or subsistence license to be affected. Members then updated Senator Therriault on the issue they were discussing. SENATOR THERRIAULT asked if that penalty has been imposed on people for non-support and this bill will now impose it on those who aid and abet the offender. MR. MAIN said that is correct. SENATOR FRENCH questioned how an ADF&G officer would look at a sportfishing license, know the difference, and enforce that provision. CHAIR SEEKINS said he couldn't imagine. SENATOR OGAN recalled that requiring social security numbers on fishing licenses was very controversial several years ago and he believed that law was amended to remove that requirement. He stated, "I suppose we may hear that they have to wear a scarlet letter or other things as well, since we do all this stuff to them." CHAIR SEEKINS noted that fishing and hunting licenses have been very useful in terms of finding people. SENATOR OGAN told members he heard from a man last night on this topic who did not want to go on record, which he thinks is common because of the scarlet letter factor. He said as a legislator, he has heard many constituents complain about CSED and he relayed some of their stories to members. He expressed concern that those people who lose jobs or have other problems and get behind with child support payments will now become felons and that there is a whole contingent of people who do not testify and are not being represented. He said he does not like people who will not help support their children but he cannot support the bill as is because it will make some people felons who are trying to support their kids but cannot. CHAIR SEEKINS said he shares some of Senator Ogan's concerns but two things on page 2 give him comfort. The first is on line 2, which is the phrase, "without lawful excuse," to provide the support. That phrase is defined on lines 23, 24, and 25 as having the financial ability or the capacity to acquire that ability through the exercise of reasonable efforts. He said if the person Senator Ogan referred to does not have the financial capacity, that would be a lawful excuse unless the person has the capacity to acquire that ability and refuses to do so. MR. MAIN confirmed that is true. CHAIR SEEKINS said someone who has fallen on hard times and cannot support their child would not fall under this statute. MR. MAIN said given that CSED has only four investigators and has been able to prosecute only 24 cases in 4 years, this bill will not increase its caseload but it will allow CSED to negotiate deals with people because the law will have more teeth. He noted there will always be people who refuse to pay, no matter what, and people who cannot afford to pay, no matter what. CHAIR SEEKINS asked what process CSED would have to go through to prosecute a person with a class C felony. MR. MAIN said a supervisor would review a case. If the amount owed is significant (at least $15,000), and there has been no record of payment, except perhaps a permanent fund dividend, all civil remedies have been exhausted, and no data shows the individual is earning wages or has assets, the supervisor would refer the case to the investigations unit. That unit would gather evidence through subpoenas and interviews, and present findings to an assistant attorney general. The assistant attorney general would then review the case to determine whether it meets the criteria. If it appears the case will be successful, she will take that case to a grand jury. If the grand jury give the go ahead, the DOL would proceed with prosecution. He pointed out that red flags could be raised at many points along the way to where the case would not be pursued as a felony. MS. WENDLANDT added that the requirement that a person have lawful excuse comes down to, in most cases, that person's ability to pay. She said Mr. Main's description of the process is absolutely correct. CHAIR SEEKINS asked if DOL is looking for the person who is living large on their children and refusing to pay any child support. MS. WENDLANDT said that is correct. SENATOR OGAN said although the lawful excuse language is in the bill, the policy is to not let people in arrears drive or to have an occupational license. Therefore, that person cannot work, hire a lawyer, or get the support order modified. He expressed concern that the policy creates a death spiral and is counterproductive to the children, as they will get no support. He said he has talked to a lot of men who see no way out and ultimately the children are hurt. SENATOR THERRIAULT said he has heard from people over the years that they can pay their child support obligation under Rule 90.3 but to do so would disenfranchise their current families. He questioned how to balance the possibility that a person might have to move his current family out on to the street to pay a child support obligation from a previous family. MR. MAIN said if that individual will struggle to pay, he can request a hearing before a revenue hearing officer. He indicated he is aware of more than one case in which the hearing officer reduced the child support obligation. In addition, CSED has reduced payments when establishing modifications when a second family is involved. SENATOR FRENCH asked at what stage of the process would a person lose a driving license. MR. MAIN said a person does not have to be convicted of criminal non-support to lose a driver's license or occupational license. CSED is asking the individual to come to the table at that point because the individual owes a lot of money. If the person comes to the table and sets up a payment agreement, the person can have his driver's and occupational licenses back. In most of those cases, the individuals have not paid any support for quite some time. He repeated that a person could be in arrears for 11 months before losing the ability to drive. He said that CSED is setting up programs to outreach to rural areas to help people understand the process and to help people pay their obligation on an ongoing basis. He said if the person has a hardship issue, CSED will reduce payments until the person is back on his feet. CHAIR SEEKINS asked how CSED would deal with an obligor who says he cannot even begin to pay until he gets his driver's license back. MR. MAIN said it does. SENATOR OGAN stated: Part of my argument, [indisc.] is that we've given into the federal mandates to suck up the federal money and we've given judicial powers to bureaucrats. Okay - you lose your license. Okay - you can't operate your business anymore just because, you know, then go for a hearing - there might be some hearing process in the department but...[END OF TAPE]. TAPE 04-47, SIDE A CHAIR SEEKINS agreed with Senator Ogan but said, at this point, he is questioning what to do with the person who owes over $10,000 in child support or has not made a single payment for 24 months and has been previously convicted under this section or a similar provision in another jurisdiction and the aggregate amount accrued is more than $5,000 and has no lawful excuse. SENATOR OGAN said the second offense would be a misdemeanor. He noted a person would lose his or her ability to own a weapon if convicted with a class C felony. He pointed out these people are not violent and the idea behind a felony is that it is a crime committed with evil intent. He repeated that the constitution bans putting people into prison for debt. He suggested that the judge would come down harder on a second misdemeanor conviction. SENATOR THERRIAULT commented that this is the worst part of a legislator's job - trying to legislate people's lives. CHAIR SEEKINS announced that HB 514 would be the first bill heard at the committee's next meeting. He then adjourned the meeting at 10:00 a.m.